On censuring the president, then and now

16 March 2018

NormanL

An underlying theme of some Democratic candidates this year is their intention, if elected, to go after the President with everything they've got. While that can mean almost anything, the current crop of incumbent Democrats offer some more concrete clues.

On the list is a congressional censure of the President for his actions or statements. Two such measures are currently pending in the House. One example is here -- which would formally censure and condemn the President for saying unkind things about immigrants.

While this measure has zero chance of passing in the Republican-run House, we were curious about whether such resolutions were allowable, and if so, whether they had been approved in the past.

While each house of Congress has authority to discipline its own Members through censure, congressional censure of the President is rare. For that reason, there seems to be a recurring question as to whether Congress has the constitutional authority to adopt such a measure at all. As discussed below, it would appear that Congress may censure the President through a simple (one chamber) or concurrent (two chamber) resolution, or other non-binding measure, so long as the censure does not carry with it any legal consequence.

So either or both chambers can censure a president -- and do so legally so long as it does not try to impose a penalty. That would be unconstitutional. So when has this happened before?

...the first congressional censure of the President seemingly occurred in 1834 after President Andrew Jackson removed his Treasury Secretary for refusing to withdraw government deposits from the Bank of the United States. The approved Senate resolution stated that President Jackson had “assumed upon himself authority and power not conferred by the constitution and laws, but in derogation of both.” The Jackson resolution was subject to some debate, and three years later—once the President’s supporters regained control of the Senate—the resolution was officially expunged from the Senate Journal. Similarly, in 1842, the House adopted a committee report that contained language criticizing President John Tyler’s use of the veto, accusing him of a “gross abuse of constitutional power” by which he had “assumed...the whole legislative power to himself....”

Jackson's censure rankled him for years. He formally protested the move in a message to Congress in 1834 and fought to have it expunged from the record. It eventually was, and even generated a bit of a celebration:

For the next three years, Benton worked tirelessly to remove this blot from Jackson’s record and from the Senate’s official journal. Early in 1837, with less than two months remaining in the president’s final term, and with majority control back in Democratic hands, Benton called for a vote. By a five-vote margin, the Senate agreed to reverse its earlier censure. On January 16, 1837, the secretary of the Senate carried the 1834 Journal into the chamber, drew careful lines around its text, and wrote, “Expunged by order of the Senate.”

Pandemonium swept the galleries. When a disgruntled Whig sympathizer ignored the presiding officer’s repeated calls for order, that officer directed the sergeant at arms to arrest the man and haul him onto the Senate floor. After the Senate voted to free the demonstrator, he approached the presiding officer and demanded, “Am I not permitted to speak in my own defense?” The outraged presiding officer ordered him removed from the chamber and the Senate adjourned amidst the tumult.

For those interested in learning more about the censure fight, and Jackson, we highly recommend Jon Meachum's American Lion: Andrew Jackson in the White House. It is an engaging, spirited, and fair biography of one of the most consequential figures to ever occupy the White House...and helps explain why President Trump has Jackson's portrait displayed in the Oval Office.

And as for the current censure mania in some Democratic quarters...bless their hearts.